A Study Of The Acceptability Of Civil Judgments In The Light Of Habermas’s Discourse Theory Of Law

The question of how to achieve the acceptability of a judgment is an enduring one.Acceptability is the unity of factuality and validity,and requires the achievement of self-consistent and reasonably acceptable judgments.In order to achieve acceptability,the gap between fact and law must be bridged.Habermas advocates a discourse theory of law to bridge the gap between norms and facts.Discourse is reflexive interaction in a non-coercive environment.Discourse is based on the act of interaction in the world of life,and the communicative action is an intentional act in which subjects reach consensus with the aim of understanding and using language as a medium to coordinate their actions.The three validities requirement of the communicative action are: truthfulness,correctness and sincerity.The legal discourse based on them are bound to follow the internal logic of discourse,the process of legal discourse is an orderly and consensual contest of arguments,in which the discourse choose reasonable arguments that are acceptable to all parties through a critical process of interaction.The legal process acts as an institutional framework that guarantees a free process of interaction that is limited in temporal,social and substantive terms,but that does not interfere with the internal logic of the discourse,and that comes as close as possible to the ideal discursive situation setting in the process of legal discourse.How can acceptability be achieved? The institutional framework of the legal process and the internal logic of legal discourse require that the process of legal discourse(both in terms of argumentative and operational discourse)achieve the requirements of through intersubjectivity(bottom-up)pathway,legality(top-down)pathway and legitimacy(bottom-up)pathway to achieve the acceptability of judgments.The civil procedure is in line with the Habermas’ s theory of legal discourse due to its party dominant litigation structure and spirit of communication.The cooperative system is characterised by a focus on the autonomy of will of the parties,on the cooperation between public and private powers,and on the resolution of disputes through rational dialogue between the parties in order to reach consensus.It can maximise the acceptability of civil judgments.The acceptability of a judgment is the recognition and acceptance of the judgment by all persons involved or involved in the judgment.The legality and legitimacy also require the guarantee of the intersubjectivity of the litigation process needs to be realised.The principle of equality of the parties,the principle of party presentation,and the disposition principle form the litigation structure of equality of the parties,creating the procedural premise of intersubjective sincerity for legal discourse,supplemented by the principle of good faith;and then through the principle of direct and verbal trial,the system of elucidation and the principle of discretionary evaluation,the construction of the ideal discursive situation is realised.Through the ideal discursive situation and the discourse process governed by it,the judge and the parties collaborate with each other to ascertain the facts and apply the law through the process of proof and cross-examination,to achieve the legality of the judgement and to create the formal certainty of the decision.Legality presupposes the legitimacy of citizens’ free interaction,and legitimacy depends on the procedural guarantees of legality.So in the legislation must have a moral basis,in the judicial process judges can use the openness of legal principles and the application of emotional reasoning,should further strengthen the reasoning of the judicial documents.The legitimacy is achieved through the weighing of interests in the judgement,which forms the substantive certainty of the judgement.The interplay of the three paths is the only way to achieve the acceptability of a civil judgment.